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Bailing out the bail bondsmen

It’s not often that the District Clerk makes front page headlines, but ours did late last week.

Harris County District Clerk Chris Daniel has not collected hundreds of thousands of dollars in court costs since taking office in January because, critics say, it would hurt business for bail bondsmen who contributed to his campaign.

“He’s nervous about doing it because bondsmen supported him a great deal during his election so he wants cover,” said Judge Mike Fields, chairman of the county board that licenses bail bondsmen. “No individual or group of individuals should come before your obligation to the citizens of this county when you’re an elected official — no matter how tough it is.”

The court costs are generated by lawsuits filed against bail jumpers and bondsmen to have bail money forfeited after a defendant fails to appear for court.

Fields said not collecting the money during tight economic times was “baffling.” He said the court costs, now set at $8, are supposed to be about $230, a move that would raise more than $1.5 million a year for Harris County.

Fields said Daniel told him he did not want to “levy a tax” on bail bondsmen who contributed to his election.

Daniel acknowledged he has called the fee a “tax” because it raises the amount bail bondsmen charge defendants, but denied being influenced by more than $10,000 in campaign contributions from bondsmen.

He said he has been trying to untangle the changing law in order to set the correct fee.

“I don’t care who gives me what,” Daniel said. “The law comes first.”

If that were true then there would be no reason for this story. Clearly, the law has not been coming first.

Let me vent for a moment about Daniel’s lame attempt to deflect attention from his poor performance by labeling this fee a “tax”, because we all know that anything that’s a “tax” is bad and kills jobs and must be opposed by all right-thinking people. This particular practice has become so pervasive lately – see, for instance, every utterance of the phrase “rain tax” by opponents of Renew/Rebuild Houston – that as far as I’m concerned the use of it is an up front admission that you don’t actually have an argument against whatever it is you’re opposing. You’re just hoping to confuse the issue with stupid slogans and knee-jerk reactions. It’s particularly egregious in this case because the fee in question is actually a cost imposed on the defendants who don’t show up for their appointed court date. The bondsmen have to cover that cost in this instance, but they are then free to use whatever legal means they have to collect it from their client. If they have to eat some of those costs, that’s just too bad – that’s the nature of the business they’re in, as they know fully well. Failing to collect this money from them, which is owed to the people of Harris County to cover their costs, is forfeiting his duties as District Clerk.

Daniel also tries to make an equally lame argument that collecting these fees would somehow contribute to jail overcrowding. Given that these fees are only assessed on defendants who fail to show up for their appointed court date, I don’t see the connection. I would argue that it’s not collecting these fees that would contribute to keeping the jails fuller than they need to be. The point of them is to have some meaningful incentive to not skip on your court date. Seems to me that if a judge has a borderline decision about whether to cut a given defendant slack on bail or not, the knowledge that the defendant and his bail bondsman will be on the hook for some real money in the event of a skip would help push the judge towards allowing a more modest sum for bail.

Anyway. Daniel seems to realize that he hasn’t a leg to stand on. He admits that the law has been fully explained to him. How about we start collecting the fees, including the fees we should have been collecting all along, and move on? Thanks. Grits has more.

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5 Comments

  1. Brad M. says:

    So is Daniels a liar? His campaign website said he’d bring sound business judgement to the office of HC clerk. http://www.chrisdaniel.org/

    How can this happen? A Republican candidate doing something else once elected to office. Unheard of.

  2. Diana says:

    We have been brainwashed into thinking that taxes are evil and that anything that resembles a tax therefore must be evil. Saying something is a tax or accusing someone of trying to raise taxes has become almost like Communism accusations during the Red Scare. What is wrong with taxes when everyone pays their fair share? When they are properly used for the benefit of everyone? What is wrong with taxes when big businesses are forced to pay proper wages and pay their share of taxes? How else are the institutions (educational, military, health…etc.) we as Americans believe in supposed to be paid for?

  3. Brad M. says:

    Diana,

    You are a communist for even suggesting that taxes at any level above zero are reasonable. I will be contacting the local UnAmerican Activities Committee and reporting you shortly. Please post your full name, address and SS# so that proper punishment can be meted out.

  4. Paul Kubosh says:

    Full disclosure…My brother Mike Kubosh is a Bail Bondsman. I spent a few years sitting on the Bail Bond Board as the Defense Attorney Representative. Chris Daniel is not the first one to charge the $8 fee. That practice started with Theresa Chang, followed by Loren Jackson and then continued by Chris Daniel. I am posting now the Bail Bondsmens reply to the Chronicle Editorial Board. I figure this will be the only place the bondsmen will get a chance to fully voice their side of the story.:

    Dear Editor,

    I am writing to you to respond to the one sided and mean spirited articles that appeared recently asking why the District Clerk was not collecting “our money.” I am offended because your article failed to even point out that there are valid arguments under the law regarding why there is a question about the proper amount to be charged in a Criminal Bond Forfeiture case. Further, your article is just wrong when it says that court costs in Harris County are $8.00. They are actually $96.00, but the law allows a bondsmen to waive service of citation (to save money) and only for the ones that have waived citation is the net fee $8.00. There are other counties in the State of Texas that are doing exactly what Harris County is doing and this was not reported. Further, this has been the practice in Harris County for the terms of the two previous District Clerks. This is not something of the current district clerk’s making.

    There is a bigger issue here. There is no consistency throughout the State of Texas regarding the proper court costs to be attributed to a bond forfeiture case. Brazos County and other counties charge no court costs. Other counties charge much more. All of these counties are interpreting or misinterpreting the same set of statutes. The Supreme Court of Texas and the Texas Court of Criminal Appeals have held that a bond forfeiture case is a criminal case and not a civil suit. This is important because Judge Fields and Kathy Braddock are taking the position that the district clerk should be charging fees set out in various statutes which say that they are to be collected on the filing of a “civil suit.” Since a bond forfeiture case is not civil; but instead, is a criminal case it would seem that a simple statutory interpretation would mean that these statutes do not apply to a criminal bond forfeiture. It would make sense that if the statute says to collect a fee on the filing of a civil case and the Supreme Court of Texas and the Texas Court of Criminal Appeals have both held that these are not civil cases you would be right in concluding that these fees do not apply.

    The Texas Attorney General was asked to issue an opinion on this issue regarding just one of these statutes. The Attorney General concluded that the statute did not apply to bond forfeiture cases because they are not civil cases. So contrary to the positions of several local politicians, there is a substantial disagreement about whether the statutes apply to bond forfeiture cases.

    There have been several examples in our past that would seem to support this conclusion. In 2010, the Texas Court of Criminal Appeals was asked to address whether the civil fee statutes before all the Texas Courts of Appeal applied to bond forfeiture cases. The majority of the courts of appeals charged the fees even though the statute stated to collect the fee on the filing of a civil appeal and these cases have been held criminal appeals and not civil. The Texas Court of Criminal Appeals agreed with the bondsmen and held that the majority of the courts of appeals were wrong and these statutes did not apply. So since the Texas Court of Criminal Appeals held that statutes requiring the payment of a fee for a civil appeal did not apply to a bond forfeiture case, it would seem to support an argument that a statute stating that a fee should be collected on the filing of a civil case also would not apply to a criminal bond forfeiture case.

    This is important because a district clerk cannot charge a fee that is not supported by statute. In the early 1990s, the El Paso County sheriff’s office decided to implement a bond approval fee to be charged for every bond posted. The fee started at $3.00 a bond and slowly increased over the years to $30.00 a bond. The county found this to be a painless way to raise taxes. Other counties followed the example of El Paso. However, there was no statute authorizing the fee. The bondsmen ultimately filed suit over the matter and in the end the Supreme Court of Texas held that there was no statute authorizing the fee and held it was improper. The Court stated the statute relied upon by the sheriff did not apply. Numerous counties were forced to return millions of dollars to bondsmen across the State of Texas.

    This history makes the current discussion even more dangerous for Harris County. So if the statutes do not apply to criminal bond forfeiture cases, then the district clerk would be charging an invalid fee which would have to be returned. This would be compounded by the fact that these fees are not kept local. Over 60 cents of every dollar collected is sent to the Texas Comptroller and does not remain in Harris County. Therefore, if the clerk is wrong in imposing these fees, Harris County would be hoping for the benefit of less than 40 cents on the dollar, but would have to return 100 cents on the dollar if the courts determine the action was wrong.

    Harris County has a terrible track record in litigation. In the two Pruett cases, Harris County decided to impose a new rule on the local bondsmen. The county even approached the Texas Legislature to enact a statute authorizing this new rule. However, the United States Court of Appeals for the Fifth Circuit held that the statute violated the United States Constitution. The Texas Supreme Court held that the rule violated the federal and state constitution. Consequently, the county was forced to pay the high cost of its own legal fees and the fees of the bondsman too. The County is continuing under a cloud of judgments regarding extensive legal fees for a losing cause.

    The bondsmen of Harris County are an integral part of the Criminal Justice System. They provide a public service that costs the taxpayers of Harris County absolutely nothing. The private sector also does the best job of getting people to court. Of all the different types of pretrial systems the private sector has half the failure to appear rate of anything else. Pretrial release, which is the government sponsored free bond program, clogs up the Criminal Justice System and over time causes jail overcrowding to get worse. This is easy to understand because the court house is a conveyor belt and a steady stream of new cases are being added all the time. So anything that causes the system to slow down is going to make Harris County overcrowded jail worse. Since the failure to appear rate of people on pretrial bonds is at least twice that of the private sector, it is easy to understand that when you have to reschedule twice as many cases the system is going to create an even bigger backlog.

    We should be celebrating our local bondsmen and thanking them for doing a great service to the community at no cost to the taxpayer. We ought to also recognize a clerk who is being cautious about imposing fees to the bonding community where there are substantial questions about whether the law applies, other counties are also charging even less than Harris County and if Judge Fields and Kathy Braddock are wrong, the county will sustain substantial liability and not increased revenue as suggested. Especially in light of Texas’ history and Harris County’s peculiar skill for picking the losing argument, the district clerk is wise to not be collecting these pennies when dollars will be owed in return if Judge Fields and Kathy Braddock are wrong. The District Clerk is wise to be waiting for the issue to be resolved by the courts just like the previous two district clerks.

    Sincerely,

    Dale Coburn

    President, Harris County Bondsmen Association

  5. anonymous says:

    paul: your comment wins! good game!

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